Court Of Justice Of The European Union Research Articles

OP v Commune d’Ans: Another Step in the Wrong Direction for Headscarf-Wearing Women

Abstract This article analyses and criticises the latest Court of Justice of the European Union (CJEU) case concerning the wearing of Muslim headscarves at work. OP was refused permission to wear a Muslim headscarf at work because her employer, a public authority, had a policy of exclusive neutrality, prohibiting employees from wearing any form of religious clothing or symbols. The CJEU judgment limits the employment opportunities of Muslim women who want to wear headscarves for religious reasons and allows member states and infra-state bodies a margin of discretion to decide whether to ban religious clothing and symbols for all employees, only for employees who come into contact with service users or not to ban such items at all; and, it ignores any possibility of the presence of gender, race or multiple discrimination. Prohibitions on religious clothing and symbols affect especially Muslim women, who are often from a non-European background and thus could amount to gender discrimination, race discrimination and to discrimination on a combination of religion or belief, gender and racial or ethnic origin.

Fiat v European Commission: Fiat and Luxembourg’s Great Fiscal Autonomy Victory Comes at a Great Cost to the Commission

The Court of Justice of the EU (CJEU) handed the European Commission a significant defeat in its objective to stop multinational enterprises from benefitting from illegal state aid, mainly through unilateral transfer pricing agreements. The CJEU corrected the Commission’s analysis and asserted that conferring a selective advantage from a state policy was only possible by comparing inconsistencies with the Member State’s legislation rather than a harsher EU-wide OECD arm’s length principle. This article will analyse the issues caused by the case’s outcome, such as parity and uncertainty in the Commission’s analysis for future cases. Additionally, the article will analyse the mostly unsuccessful use of the state aid provision by the Commission in its other cases and how the amendment of EU laws is needed to turn the tide in the Commission’s favour.

The CJEU’s Strict and Effective Interpretations of the Exceptions and Limitations of the InfoSoc Directive: Origin Over Flexibility

AbstractThe Court of Justice of the European Union (CJEU) maintains strict interpretation and effective interpretation to guide its harmonisation of the exceptions and limitations (E&Ls) in Art. 5 of Directive 2001/29/EC (the InfoSoc Directive). Its application of the two discourses is often regarded as enabling flexibility in copyright at different levels. This article rejects this argument and posits that the CJEU maintains them to harmonise the InfoSoc E&Ls with different origins. To verify the hypothesis, it categorises the discourses guiding the CJEU’s harmonisation by their defining features and the E&Ls of the InfoSoc Directive based on whether they have their origins in the Berne Convention. Based on the categorisations, it empirically examines the distribution of strict interpretation and effective interpretation in different categories of E&Ls. The distribution reveals a correlation between the application of strict interpretation and the E&Ls without origin in the Berne Convention and between the application of effective interpretation and the E&Ls with origin in the Berne Convention. Based on the correlation, applying effective interpretation should enable greater flexibility than strict interpretation when it is applied to the E&Ls without origin in the Berne Convention, especially to permit uses enabled by new technologies.

Discourse patterning and recursion in the EU case law

Abstract This paper proposes a novel approach to analysing the text organization of legal texts, specifically focusing on discourse patterning and recursion in the context of EU case law. The study investigates the discourse organization of the judgments of the Court of Justice of the European Union (CJEU) by exploring, in a data-driven analysis, the use of multiword expressions that occur with specific colligation properties. One peculiarity of CJEU judgments is that their structure is not readily visible since headings are unsystematically used. The application of the present approach demonstrated that discourse organization can be revealed in terms of discourse patterns, signalling devices, and by exploring the position of linguistic expressions in the text. The findings not only reveal concealed text organization units in CJEU judgments but also offer a methodological model for similar analyses in other legal and non-legal texts. The proposed model suggests an investigation of the interaction between metadiscourse (IMD), discourse patterns (DPD), and textual colligation, positing that when IMD and DPD exhibit textual colligation, they signal discourse patterning. This proposal connects two levels of text organization through textual correlation. The study further explores relations between discourse patterns in terms of the notion of recursion.

Fashion and Authors’ Moral Rights

Abstract Due to the judgments Cofemel and Brompton from the Court of Justice of the European Union (CJEU), it is certain that the standard of copyright protection for works of applied art is the same as for any other work categories. However, the harmonising effect of these judgments only extends to the author’s economic rights, and not their moral interests. The moral rights of authors have not been popular topics in legal literature concerning copyright and works of applied art. This raises the question of to what extent moral rights apply to these works, which many national copyright laws used to discriminate against prior to the guidance from the CJEU. This multidisciplinary article delves into the complex relationship between moral rights and works of applied art in the specific context of fashion design. It appears that moral rights are absent from the standard practice in the fashion sector. This is evident, inter alia, in the fact that typically only renowned designers are attributed as authors. The article notes that there is no legally valid reason for fashion houses to overlook designers’ right of attribution. The right of integrity, however, has much less practical significance in the fashion sector. This article suggests the correct approach to moral rights in the fashion sector. The focus is on the European author’s rights tradition. The moral rights tradition of the Nordic states is used as a reference point because it allows for the consideration of the realities in different creative sectors without disrespecting authors’ personal interests.

Conditional Rebates and Intel: A Step Backwards by any Standard?

Abstract This paper considers the law on conditional rebates. It sets out the changes introduced by the Court of Justice of the European Union (CJEU) Intel decision and how these have been applied in the General Court Intel Renv case. It is explained that the changes are part of a broader move to bring EU competition law in line with a Consumer Welfare Standard (CWS). An analysis of the new test then reveals that it is flawed for five reasons: the new test ignores the fact that low prices and exclusion are separable. The test incorporates the As-Efficient Competitor test, which only protects firms with low costs, not those that are more competitive as a whole. The test introduces a new standard of harm, which means that the law no longer prevents the restriction of competition, but rather prevents making it impossible for a firm with the same costs as the dominant undertaking to compete, which is a different standard. The new standard diminishes the deterrent effect of the law. Finally, compared with the original test, the CJEU test fails to maximize consumer surplus (despite that being the aim of the CWS). Therefore, there is no reason to retain the test and it is recommended that it is reversed.

Before, after and beyond the Matzak case: Overview of the Belgian jurisprudence

The Matzak case, a landmark ruling by the Court of Justice of the European Union (CJEU), challenged traditional understandings of working time and rest periods, particularly for volunteer firefighters in Belgium. Despite earlier cases before Belgian courts, the Matzak decision brought significant shifts in jurisprudence, influencing how volunteers were categorised and how stand-by time was interpreted. This article examines the impact of the Matzak judgment on Belgian case law, tracing its evolution from pre- Matzak rulings to post-decision interpretations. Analysing decisions from the Court of Cassation and the Constitutional Court, the study explores the redefinition of volunteers as employees and the qualification of stand-by time as working time. The reluctance of Belgian courts to adapt their views on stand-by duty prior to Matzak is highlighted, with persistent adherence to principles established in the Simap case. However, the Matzak ruling prompted questions about the treatment of voluntary firefighters and the adequacy of legal distinctions. Despite initial resistance, subsequent cases challenged previous interpretations, leading to clarifications by the Court of Cassation. Ambiguities remain, as seen in the Simon case, raising concerns about consistent application of Matzak jurisprudence. The unique status of voluntary firefighters in Belgium presents challenges, as they operate in a legal grey area with regards to rights and working conditions. Municipalities are urged to regulate their working time in the absence of general legislation. Nonetheless, the recognition of firefighters as workers by the CJEU offers promise for their legal standing under EU law. Increasing recognition of comparability between volunteers and professionals suggests a move towards more equitable treatment. Looking beyond Matzak, the article explores implications for the evolving digital workplace, where boundaries between work and personal time blur. The Matzak principle, which introduces objective limitations on devotion to personal and social interests, offers a framework for addressing these challenges. By considering potential applications in the digital realm, the article emphasises the importance of protecting worker well-being and rest periods, consistent with the objectives of the Working Time Directive. In conclusion, the Matzak case has had a significant impact on Belgian jurisprudence regarding the working time of volunteer firefighters and the adjudication of stand-by periods. While challenges and ambiguities persist, the ruling has spurred a reassessment of legal frameworks and encouraged greater recognition of the rights of volunteer workers. As the digital landscape continues to evolve, the Matzak principle provides a valuable tool for navigating complex issues of work-life balance and ensuring the protection of workers’ rights.

The international skating union ruling of the CJEU and the future of CAS arbitration in transnational sports governance

AbstractOne of the least visible and yet potentially most consequential findings in the trio of decisions related to transnational sports governance rendered by the Grand Chamber of the Court of Justice of the European Union (CJEU) on 21 December 2023 concerns the Court of Arbitration for Sport (CAS). It is relatively easy to overlook, as it is tucked away in the much-less scrutinized International Skating Union (ISU) judgment of the Court. Yet, as will be argued at the end of this article, the CJEU’s conclusions regarding the bindingness of CAS arbitration are consequential and will limit the function of the CAS as a kind of safety valve for the Olympic Movement. First, the article traces how the CAS became part of the ISU case in the original decision of the European Commission (EC). Thereafter, I discuss why the General Court (GC), when reviewing the ISU decision, annulled the part dedicated to the CAS, as well as the position of Advocate General (AG) Rantos in his Opinion, which mostly endorsed the GC’s findings. This section is followed by a discussion of the main tenets of the ruling of the Grand Chamber. The final part provides a general assessment of the impact of the decision on the CAS and on the future of transnational sports governance.

Inspiration or infringement? Social media ‘viral’ trends: a case study on TikTok

Abstract Short-form videos have recently gained popularity thanks to social media platforms like TikTok. Some of the videos created by users go ‘viral’ and are ‘reproduced’ by others as they become trends on this platform. This article examines whether viral social media trends can warrant copyright protection and whether, by recreating such trends without permission, a potential infringement takes place. The idea–expression dichotomy will form the basis of the analysis so that the question is whether the infringer merely borrows an unprotected idea or rather copies a protectable expression. Additionally, as hinted in the pending referral in Mio (C-580/23), the Court of Justice of the European Union (CJEU) is yet to determine how the assessment of similarity, when examining an alleged infringement, must be conducted—is this one of recognizability or rather overall impression? Exceptions and limitations—most pertinently, pastiche—also form part of the discussion as questions are raised on the application of this undefined concept, pending the judgment in Pelham II (C-590/23). A balancing approach shall be taken between the interests of the different stakeholders at hand, including having regard to freedom of expression and protection of IP.

The Textual Organisation of CJEU Judgments

AbstractThis research paper focuses on the comprehensive description and analysis of the structure of judgments from the Court of Justice of the European Union (CJEU). Despite the growing interest in examining the rhetorical and linguistic aspects of legal texts, the genre structure of judgments has remained a little-explored area. While headings and paragraph enumeration provide a systematic reference system for citation and cross-referencing they do not reveal the dynamic relations between individual text chunks in judgments. The current analysis combines Swales and Bhatia's genre theory with Hoey's approach to patterning in discourse and corpus linguistics analyses. The findings show that the complexity of CJEU judgments extends beyond surface-level information with linguistic expressions playing a crucial role in highlighting dynamic relations and discourse patterning. The results reveal how the structure of CJEU judgments has changed over time and point to the intratextual relations between different sections. Additionally, the study provides a detailed description of the textual organisation of CJEU judgments in terms of move structures and conventionalised discourse patterns.

Margin Squeezing as a Manifestation of Abuse of Dominant Position

Margin squeezing is an abuse of dominant position, which is not directly mentioned in Article 102 of the Treaty on the Functioning of the European Union (TFEU). It is the case law of the Court of Justice of the European Union (CJEU) and the Euro­pean General Court that have recognised this practice as anti­competitive, initially treating it as anti­competitive refusal to supply. Given the many similarities between these practices, there are questions as to whether margin squeeze should be consi­dered an separate manifestation of an abuse of dominant position. The aim of the article is to analyse the position of the European Commission in this regard and juxtapose it with the views contained in relevant judicial decisions, judgements, and rulings, as well as to compare it with the regulations adopted in the United States.

A multi-perspective view on visibility in EU design law

Abstract In EU design law, the parameter of visibility must multitask. This article aims to discuss its meaning and legal consequences against the current and amended legal provisions for designs. As the legal notion of a design is the ‘appearance of a product’, visibility has been woven into design features’ requirement of perceptibility to the eye. Visibility also aids in the identification of the object of protection for a registered design through the registration documentation and, analogically, the identification of an unregistered design through proofs of disclosure. By this token, design features visibly displayed by the representation/disclosure of a design determine the comparison between the overall impression of a design and another design/product for the purposes of invalidity or enforcement. The Court of Justice of the European Union (CJEU) has also recently framed visibility in the perspective of evidentiary issues of technical functionality. Visibility represents a prerequisite for the assessment of novelty and/or individual character of a design of a component part of a complex product. This article looks into the CJEU’s guidance concerning the protection of parts of products, including the interpretation of the criterion of visibility during normal use that applies to component parts.

Court of Justice of the European Union or European Court of Human Rights – Is There a ‘Supreme Court of Europe’?

Abstract In Europe, judicial review is not only exercised by courts within the states. Additionally, there are two European Courts, the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). This chapter shows first their respective function with respect to judicial review. In a second step, it put its emphasis on the relationship between them and undertakes to ask whether – with respect to judicial review - one of them can be understood as the ‘Supreme Court of Europe’. It concludes that it is the European Court of Human Rights which can be described as such a ‘Supreme Court’.

On the interplay between competition law and privacy: the impact of Meta Platforms case

ABSTRACT In July 2023, the Court of Justice of the European Union (CJEU) issued a landmark judgment at the intersection of competition law and data privacy law. This article delves into two pivotal aspects: firstly, the recognition of privacy-related harms as factors within the realm of competition law considerations; and secondly, an examination of the role of competition law authorities in addressing infringements related to data protection. The analysis emphasizes the practical significance of the CJEU decision, asserting its importance rather than controversy. The judgment provides clarity on how regulatory rules can influence competition assessments and highlights the potential for competition authorities to consider the broader market and regulatory landscape without exceeding their mandate.The Facebook case, while not exhaustive, marks a crucial step in elucidating how regulatory rules influence competition assessments and how competition authorities can navigate broader market and regulatory considerations within their mandate. .

Case C-632/20 P, Spain v. Eur. Comm'n (C.J.E.U.)

On January 17, 2023, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its judgments in case C-632/20, P Spain v. Commission (Kosovo), ruling that notwithstanding the European Union's non-recognition of Kosovo as a state, Kosovo may participate in an EU agency, namely the Body of European Regulators for Electronic Communications (BEREC). The judgment is significant for several reasons: (1) for the European Union's growing engagement with non-recognized territorial entities since it clarifies the meaning of the concept of “third country” and confirms that such entities may participate in EU agencies; (2) for the European Union's engagement with Kosovo—particularly in the light of Kosovo's 2022 bid for EU membership; and (3) more broadly, in the context of the burgeoning debate regarding the CJEU's approach to international law.

Article: Anti-Avoidance Jurisprudence in Direct Taxation: The CJEU Between Politics and Certainty

Over a span of several years, the Court of Justice of the European Union (CJEU) developed a framework for anti-abuse in the context of European law and particularly established criteria for justifying restrictions on the fundamental freedoms in the tax context. In tax cases on anti-avoidance that are more recent, however, the court has demonstrated a notable change in its stance towards this issue that represents a disruption in the consistent development of its jurisprudence on abuse. While the court covers the contradictions in its case law by passing an impression of continuity between disparate decisions, it is remarkable how recent rulings draw from Organisation for Economic Co-operation and Development (OECD) language. This reliance on concepts from a non-EU institution, however, leads to legitimacy concerns. The increasing importance of international organizations and public opinion – for example, in reaction to the Panama Papers – in shaping the international tax landscape is undeniable. While high-profile projects like Base Erosion and Profit Shifting (BEPS) and Global Anti-Base Erosion (GloBE) highlight international tax issues, they also exert political pressure on judicial bodies such as the CJEU which leads to less methodological decisions that will align the court with political interests. In this context, the CJEU’s acting as a political player at the borderline of its competences is to be viewed critically, especially regarding the recent shift in its case law on abuse and tax avoidance that leads to concerns over legal certainty. Anti-abuse principle, anti-avoidance jurisprudence, CJEU, international organizations, international taxation, legal certainty, legitimacy, political influence

Article: A Change in the Law or A Guideline from the EU VAT Committee? Evaluating Soft Law Instruments for Clarifying EU VAT Law Through the Lens of Legitimacy

In addition to amendments to the European Union (EU) value added tax (VAT) statutory law and the case law of the Court of Justice of the European Union (CJEU), various types of soft law have increasingly been used in recent years to elucidate the essence of EU VAT provisions. These include the guidelines issued by the EU VAT Committee which is a body explicitly enshrined in the EU VAT Directive. This article is aimed at discussing the significance of the EU VAT Committee guidelines from a legitimacy perspective. It will be demonstrated that they do not correspond to the ideals of inclusive governance that have long been advocated at the Union level and thus generally show deficits in input legitimacy. Some recent examples relating to the amended special scheme for small- and medium-sized enterprises (SMEs) will be utilized to argue that the EU VAT Committee guidelines can only be considered to have a certain level of output legitimacy. They can thus be useful as a legal opinion that national authorities and courts should take into account when interpreting and applying EU VAT law. However, they must therefore comply with the mandate of the EU legislature enshrined in Article 398 paragraph 4 of the EU VAT Directive. Value added tax (VAT), EU VAT law, EU VAT Committee, soft law, legitimacy, rule of law, interpretation of law, SME scheme, Amending Directive (EU) 2020/285

Multi-level governance and policy contestation: Ambiguity and conflict in the implementation of peatland conservation in Ireland

Biodiversity represents one of the most controversial areas of environmental governance. Objectives: Compliance with the EU regulatory framework is contained in the Habitats Directive (92/43/EEC) and in the designation of special areas of conservation which has prompted contestation in relationships between public authorities, farmers, and local landholders across all levels of governance. Methodology: Using Matland’s ambiguity-conflict model as a lens to view the implementation experience, the discussion uses official documentation and literature sources to explore Ireland’s compliance with EU biodiversity regulation with reference to peatlands. Results: This article uses the case of Ireland to explore inadequate implementation which led to prolonged legal proceedings culminating in an unfavourable judgement against the Irish state on 29th June 2023. In Case C-444/21 the Court of Justice of the European Union (CJEU) ruled that Ireland failed to fulfil its obligations under the directive, namely the appropriate designation of a Natura 2000 network of sites for important habitat and a protection regime for them. Central to Irish debates on the habitats directive is the protection of raised bogs which has resulted in considerable conflict, politicisation, and prolonged negotiations between peat-cutters and public authorities at national and local levels. Conclusions: The discussion highlights the difficulties in changing ingrained attitudes and practices for managing nature conservation in privately owned land and in securing collaborative engagement with stakeholders.

Round-up of European Union trade marks in 2023

Abstract The purpose of this article is to provide a quick overview of the most significant European Union trade mark (EUTM) cases decided in 2023 by the Court of Justice of the European Union (CJEU) and the General Court (GC). This article has a practical bias and is aimed at readers who rapidly wish to find the key decisions of 2023.

Joint controllers in large research consortia: a funnel model to distinguish controllers in the sense of the GDPR from other partners in the consortium

Large European research consortia in the health sciences face challenges regarding the governance of personal data collected, generated and/or shared during their collective research. A controller in the sense of the GDPR is the entity which decides about purposes and means of the data processing. Case law of the Court of Justice of the European Union (CJEU) and Guidelines of the European Data Protection Board (EDPB) indicate that all partners in the consortium would be joint controllers. This paper summarises the case law, the Guidelines and literature on joint controllership, gives a brief account of a webinar organised on the issue by Lygature and the MLC Foundation. Participants at the webinar agreed in large majority that it would be extreme if all partners in the consortium would become joint controllers. There was less agreement how to disentangle partners who are controllers of a study from those who are not. In order to disentangle responsibilities, we propose a funnel model with consecutive steps acting as sieves in the funnel. It differentiates between two types of partners: all partners who are involved in shaping the project as a whole versus those specific partners who are more closely involved in a sub-study following from the DoA i or the use of the data Platform. If the role of the partner would be comparable to that of an outside advisor, that partner would not be a data controller even though the partner is part of the consortium. We propose further nuances for the disentanglement which takes place in various steps. Uncertainty about formal controllership under the GDPR can stifle collaboration in consortia due to concerns over (shared) responsibility and liability. Data subjects’ ability to exercise their right can also be affected by this. The funnel model proposes a way out of this conundrum.